Condos and HOAs - Sun-Sentinelhttp://blogs.sun-sentinel.com/condoblog
Living with RulesFri, 16 Jan 2015 17:00:08 +0000http://wordpress.org/?v=2.9.2enhourly1Association board-enacted rules and regulations cannot change Declaration’s “use restrictions”http://blogs.sun-sentinel.com/condoblog/2015/01/association-board-enacted-rules-and-regulations-cannot-change-declarations-use-restrictions.html
http://blogs.sun-sentinel.com/condoblog/2015/01/association-board-enacted-rules-and-regulations-cannot-change-declarations-use-restrictions.html#commentsFri, 16 Jan 2015 16:55:04 +0000Jean Winters, Esq.http://blogs.sun-sentinel.com/condoblog/?p=6478Modern Declarations (of Condominium or “CC&RS” in HOAs) usually authorize the board of directors to enact certain rules and regulations. Over the years, I have written about the distinctions between board-enacted rules and the use restrictions contained in a Declaration. These distinctions are important and often misunderstood. Most importantly, boards can usually enact and amend rules without a membership vote. Amendments to a Declaration’s use restrictions almost always require a membership vote. The Board’s authority to create a rule is limited by what the Declaration expressly provides or that which can be reasonably inferred from it. Courts scrutinize board-enacted rules more strictly than provisions in a Declaration, just because boards can create and amend rules without membership input. As a result, rules do not carry a “presumption of validity” that a Declaration’s use restrictions do, and can more easily be challenged.

Little has been said about boards’ all-too-common practice of copying a Declaration’s use restrictions into the board’s rules and regulations. This is always bad practice. First, there is no need to duplicate what is already in the Declaration. It is redundant. Secondly, duplicating the use restrictions invariably leads to confusion and error.

There is a far more serious ramification than mere redundancy or confusion, however. Recently, a colleague asked me to look at a situation with a board in a condominium development. The Board first created its rules by copying the use restrictions. It then began amending these “Rules and Regulations”. In several instances, these changes directly contradicted what was contained in the Declaration’s use restrictions. I hope you see the problem with this. The board cannot circumvent a membership vote by calling the Declaration’s use restrictions “Rules and Regulations.”

The Board also made additions to its rules and regulations (the re-named use restrictions from the Declaration). As an example, suppose the Declaration contained use restrictions regarding the clubhouse. These provisions were itemized, and detailed. Is there a problem with the board adding to these restrictions in the rules and regulations? The answer to this question, although less obvious, is also “Yes”. In law, there are rules of contract interpretation. Where a provision has a very detailed “laundry list” of items, that list is complete. The inclusion of the items in a detailed list necessarily excludes items not contained in it. In other words, the Board’s adding to the clubhouse use restrictions in its rules and restrictions was inconsistent with the Declaration. Additions would require a membership vote and amendment to the Declaration.

As a result of “amending” the Declaration’s use restrictions with only a board vote, this condominium board is violating Florida law and breaching its fiduciary duty to the members. Unfortunately, boards often do not understand their limitations in creating rules and regulations, and the ramifications that can result. There is never a legitimate need or reason to copy sections of the Declaration into the rules and regulations. If boards are unsure of their rule-making authority, they would be well-advised to ask counsel before making major changes.

]]>http://blogs.sun-sentinel.com/condoblog/2015/01/association-board-enacted-rules-and-regulations-cannot-change-declarations-use-restrictions.html/feed0Condominium and HOA Election Procedureshttp://blogs.sun-sentinel.com/condoblog/2015/01/condominium-and-hoa-election-procedures.html
http://blogs.sun-sentinel.com/condoblog/2015/01/condominium-and-hoa-election-procedures.html#commentsThu, 15 Jan 2015 18:46:07 +0000Lindsay Raphael, Esq.http://blogs.sun-sentinel.com/condoblog/?p=6476We are in the heart of annual meeting/election time of year. If you live in a condominium, Chapter 718 of the Florida Statutes is very specific as to the process that must be followed in order to notice and conduct a proper annual meeting and election of the board of directors.

I highly recommend that condo associations utilize their legal counsel to prepare annual meeting notices. Also, if the association is going to have an election, I recommend that the association’s legal counsel be present to make sure the proper procedures are followed. If the proper procedure isn’t followed, the election could be invalidated and a new election must be noticed and held. This can be very costly to an association and an unnecessary expense.

60 Days Prior to Election:Under Chapter 718, a condominium must mail their annual meeting notice at least 60 days prior to the date of the election. Certain information such as the date, time, place and location should be included in the first notice of election. You should also include the number of positions up for election and how and when to submit the intent to run for the board and information letter. I usually include in this first mailing either a general proxy or limited proxy (depending on the annual meeting agenda and what the owners may be voting on).

40 Days Prior to Election:Forty (40) days prior to the election, candidates who want to run for the board must submit written notice of their intent to run. I recommend that the association include in the first notice of election mailing a notice of intent form.

35 Days Prior to Election:Thirty-five (35) days prior to the election, candidates may submit an information letter that may not exceed one side of an 8 1/2 x 11’ sheet of paper. The association may not edit, alter or otherwise modify the content of the information sheet.

14 Days Prior to Election:

At least fourteen (14) days prior to election, the association must mail or deliver the second notice of election and annual meeting. The association must also post the notice in a conspicuous place on the association’s property (i.e., where the association typically posts meeting notices). The second notice of election must include:

Remember, regardless of what your documents state, candidates CANNOT be nominated from the floor.

Unlike condominiums where the election procedure is almost entirely regulated by statute, Section 720.306(9) of the Florida Statutes provides very little guidance with respect to HOA election procedures. The Condominium Act clearly specifies the procedure that must be followed in order to notice, hold and conduct a proper election. HOA elections must be conducted in accordance with the procedures set forth in the association’s governing documents.

All members of an HOA are eligible to serve on the board, unless:

the member is delinquent in the payment of any fee, fine or other monetary obligation to the association for more than 90 days; or

the member has been convicted of any felony in Florida or in a United States District or Territorial Court or has been convicted of any offense in another jurisdiction which would be considered a felony if committed in the State of Florida (unless such felon’s civil rights have been restored for at least 5 years as of the date on which such person seeks election to the board).

A member may nominate himself or herself as a candidate for the board at the election meeting; provided, however, nominations from the floor are not required if the election process allows candidates to be nominated in advance of the meeting. Some HOAs have amended their documents so that the election process follows a similar process to that of a condominium.

An election is not required unless more candidates are nominated than vacancies exist. If there is no election, the current board members remain on the board until a successor is elected.

Unlike condominiums and unless otherwise prohibited by the governing documents, limited proxies may be used in connection with the vote to elect directors. The association may employ any form of voting process permitted by the governing documents. If the governing documents permit voting by secret ballot by members who are not in attendance at the meeting of the members for the election for directors, Section 720.306(8)(b) sets forth the balloting guidelines.

If a board of directors has any questions regarding the HOA election process, I recommend that you contact the association’s attorney who can properly guide the association, draft the annual meeting/election packet and attend the annual meeting/election to make sure that the election is conducted properly.

]]>http://blogs.sun-sentinel.com/condoblog/2015/01/condominium-and-hoa-election-procedures.html/feed0New mortgage foreclosure case explains the real “mortgage terminator” vs. statute of limitationshttp://blogs.sun-sentinel.com/condoblog/2015/01/new-mortgage-foreclosure-case-explains-the-real-mortgage-terminator-vs-statute-of-limitations.html
http://blogs.sun-sentinel.com/condoblog/2015/01/new-mortgage-foreclosure-case-explains-the-real-mortgage-terminator-vs-statute-of-limitations.html#commentsFri, 02 Jan 2015 17:23:50 +0000Jean Winters, Esq.http://blogs.sun-sentinel.com/condoblog/?p=6438Happy New Year! Here’s to a 2015 that is healthy and harmonious for all Florida communities. In the last two weeks of December, one appellate opinion was published that is noteworthy for homeowners, HOAs and condo associations. On December 17, 2014, the Third District Court of Appeals (in Miami) decided Deutsche Bank Trust Co. Americas v. Beauvais that addresses the bane of associations — a mortgagee’s delay in foreclosing. When associations foreclose for unpaid assessments (prior to a mortgagee bank filing for foreclosure), they usually take title subject to the former mortgage. Some association lawyers have aggressively pursued “quiet title” actions, to seek title free and clear of the mortgage, by claiming the mortgagee “sat on its rights” and took too long to foreclose. Beauvais distinguishes between two important statutory provisions that affect mortgage foreclosures and quiet title actions: the “statute of limitations” and “statute of repose”. The statute of limitations is used as a defense to bar a mortgage foreclosure. The statute of repose defines when an affirmative claim can be brought to terminate a mortgage (and quiet title).

Statute of limitations and mortgages
The statute of limitations time period for a note and mortgage (as with most contracts) is five years, and it begins to run from date on which the claim “accrued”. In an installment contract (such as a note and mortgage), a separate claim (cause of action) accrues for each installment payment missed. Therefore, a separate statute of limitations period also exists for each installment. Typically, however, the mortgage provides the lender with the option of accelerating the note, making all the installments immediately due upon default. What happens thereafter is the crux of this case.

History – Deutsche Bank Trust Co. Americas v. Beauvais
In January of 2007, the first mortgagee (lender) filed the initial mortgage foreclosure complaint against Beauvais, a condo unit owner whose property was governed by Aqua Master Association. The lender claimed the unit owner had defaulted by missing a monthly installment payment, and that it had accelerated the note. That case was involuntarily dismissed without prejudice, in 2010, meaning the Plaintiff could again file a lawsuit on the same grounds. The lender did not appeal or take any action to “decelerate” the note, that would have enabled the homeowner to resume monthly installment payments. A year later in 2011, Aqua Master Association recorded a lien for unpaid assessments, and then foreclosed, purchasing the property at its own foreclosure sale. The Association took title subject to the lender’s mortgage. In 2012, Deutsche Bank (the new first mortgagee by virtue of an assignment) filed a second mortgage foreclosure complaint, again alleging default and acceleration of the note, claiming the total amount due. However, Deutsche Bank also done nothing to decelerate the debt. The Association filed an affirmative defense of statute of limitations and argued that the mortgage was null and void on the same grounds. The trial court granted summary judgment for the Association and also quieted title to the property by ruling the mortgage null and void. The mortgagee then filed an appeal.

Statute of limitations bars mortgage foreclosure
The Third DCA agreed with the trial court that the statute of limitations barred the mortgage foreclosure against the Association. It rejected Deutsche Bank’s argument that the involuntary dismissal without prejudice automatically decelerated the note. In contrast to a dismissal with prejudice, here there was no adjudication on the merits of the complaint. The original default and acceleration remained after the dismissal without prejudice. No new defaults could occur because the entire debt had been accelerated, and the first mortgagee did nothing to decelerate. In 2012, more than five years had passed since the original acceleration of the note in 2007. Therefore, the original statute of limitations applied, and it barred collection of the entire debt. Deutsche Bank could not foreclose against the Association based on this note and mortgage, now or in the future.

Statute of repose determines timing for quiet title
As the court giveth the court also can taketh away. The Beauvais Court reversed the trial court’s order quieting title based on the applicable statute of limitations, which is defined in Section 95.11 (c), Florida Statutes. For mortgages, it is the statute of repose – not the statute of limitations – that defines when the mortgage terminates, so as to allow title to be “quieted.” As the court explained, “a statute of limitations is a shield that may be used as an affirmative defense; a statute of repose is a sword that may terminate a lien”. Section 95.281 (1)(a) of the Florida Statutes is the applicable statute of repose. It defines the date the mortgage (lien) terminates as “five years after a maturity date that can be ascertained from the face of a recorded document.” The mortgage, a recorded document, specified that the maturity date was in 2036. Therefore, the mortgage remains in effect until 2041, and the Association (or any homeowner) cannot quiet title until then. The debt is still owed, even if the first mortgagee cannot foreclose. The recordation of the mortgage may have legal effects on persons not now parties to the lawsuit.

Legal Strategy and Conclusion
Associations (and any homeowner) should be aware of Beauvais when considering their legal strategy regarding mortgage foreclosures and quieting title. Beauvais explains when and how the statute of limitations applies to bar mortgage foreclosure. Mortgage companies will likely begin to affirmatively decelerate the note after an involuntary dismissal without prejudice, to preserve their ability to foreclose. Nonetheless, mortgage companies have been, and probably still will be, sloppy in prosecuting mortgage foreclosures. Quiet title actions to obtain the property free and clear of a mortgage is a different issue. An association (or any other homeowner) should be aware that the statute of repose – not statute limitations – determines when a quiet title action is viable. That is five years after the date of maturity as defined in the mortgage contract. Therefore, the real “mortgage terminator” is the statute of repose.

]]>http://blogs.sun-sentinel.com/condoblog/2015/01/new-mortgage-foreclosure-case-explains-the-real-mortgage-terminator-vs-statute-of-limitations.html/feed3Funding Association Reserveshttp://blogs.sun-sentinel.com/condoblog/2014/11/funding-association-reserves.html
http://blogs.sun-sentinel.com/condoblog/2014/11/funding-association-reserves.html#commentsThu, 27 Nov 2014 11:00:15 +0000Lindsay Raphael, Esq.http://blogs.sun-sentinel.com/condoblog/?p=6435It is that time of year again when most associations are finalizing their 2015 annual budgets and deciding whether they should have the owners fully fund reserves or put to owner vote the option to waive or partially fund reserves.

Over the last few years, many associations have opted to waive reserves or at most partially fund due to the downtown in the economy in an effort to minimize delinquencies and keep regular assessments down. The problem with waiving or partially funding reserves is that the association will most likely have to pass a special assessment down the road to pay for items such as painting, concrete restoration, balcony restoration, paving, pool repair, carpet replacement and any other items which would be considered a capital expenditure.

The purpose of reserve funds is to slowly accumulate the money so that when those big budget repairs are due, reserves have accumulated and may be used to pay for such maintenance, repair or replacement. If there is no money or not enough money in the reserve account, a special assessment will need to be passed.

While an increase in the assessments due funding the association’s reserves may be difficult to swallow, paying a little bit of money each month is usually easier than having to come out of pocket thousands of dollars to cover a special assessment. I recently had a client that passed a special assessment in the amount of $40,000 per unit. Those unit owners paid a lump sum payment. If those costs had been charged over a 10 year period as part of funding the reserves, the monthly payments would have been much easier to make. Think of a reserve account as a savings account for certain association maintenance, repair and replacement items.

Chapter 720 of the Florida Statutes provides HOA boards with discretion to fund their association’s budget with reserve accounts. Chapter 718 of Florida Statutes (the “Condo Act”) requires the board to annually prepare an adequate reserve budget which does not anticipate that reserves will be waived by the membership or that the membership will provide reserves in an amount less than is adequate. The Condo Act provides a formula for determining the proper reserve amounts. Reserves must be established for roof replacement, building painting and pavement resurfacing and for any other item for which the deferred maintenance expense or replacement cost exceeds $10,000. I recommend that associations obtain reserve studies so that the Board can make sure it is properly funding the reserves.

Reserves are important to consider and each building and the owners who live in the building are different. It is the board’s responsibility to do what is in the best interest of the community as a whole.

If you have any questions regarding funding reserves, I recommend that you contact an attorney.

]]>http://blogs.sun-sentinel.com/condoblog/2014/11/funding-association-reserves.html/feed4When tragedy strikes in a community associationhttp://blogs.sun-sentinel.com/condoblog/2014/11/when-tragedy-strikes-in-a-community-association.html
http://blogs.sun-sentinel.com/condoblog/2014/11/when-tragedy-strikes-in-a-community-association.html#commentsMon, 24 Nov 2014 11:56:37 +0000Donna DiMaggio Berger, Esq.http://blogs.sun-sentinel.com/condoblog/?p=6429Very recently, a manager I know and worked with was viciously attacked while on duty in his community. A former employee walked into the management office and shot this unsuspecting young man in the head.

People I know asked me what could have been done to prevent this tragedy from occurring. It is always easy to be a Monday-morning Quarterback, but the fact remains that if someone is intent on doing you harm, he or she can usually find a way.

That being said, this attack does necessitate an important discussion about how to protect an association’s employees, directors and residents. Whenever you are dealing with volatile personality types, it is important to plan thoughtfully. We have previously seen violence in community associations where a resident attacked a director and vice versa. We have also seen resident vs. resident crime. director vs. director crime and resident vs. manager and director vs. manager attacks. Sadly, no group is immune from being attacked or being the attacker.

What if you don’t know someone has such a personality? Well, hiring decisions should not be taken lightly. In this case, a thorough personality screening of this employee may or may not have revealed a history of mental illness or highlighted other troubling personality issues. Given how some people react to bad news, terminating an employee might also require speaking with a professional ahead of time to frame the news in the best possible light and to take all necessary precautions should the employee present a problem immediately upon learning of the termination.

If you have any inkling that a resident, employee or director may have violent tendencies, you must take immediate steps to defuse the situation, reach out to all appropriate professionals and service agencies and do not go it alone.

Fortunately, Jeremy Holland, the manager who inspired this blog, is recovering with the help and overwhelming support of his family, friends and the community he served.

If you would like to help out, you can: https://www.giveforward.com/fundraiser/mt86/jeremy-holland-and-dana-enriquez-thumbs-up-fund

]]>http://blogs.sun-sentinel.com/condoblog/2014/11/when-tragedy-strikes-in-a-community-association.html/feed0Tis the Seasonhttp://blogs.sun-sentinel.com/condoblog/2014/11/tis-the-season.html
http://blogs.sun-sentinel.com/condoblog/2014/11/tis-the-season.html#commentsThu, 13 Nov 2014 20:51:24 +0000Lindsay Raphael, Esq.http://blogs.sun-sentinel.com/condoblog/?p=6427As we approach the holiday season, many people love to partake in the holiday cheer. That could include holiday parties and decorating condominium units, unit doors and balconies.

Although the decorations may be beautiful and festive, depending on your association’s governing documents, you may not have the right to decorate certain portions of the unit, including the exterior door, your windows and/or your balcony. If you live in a condominium where you are not permitted to decorate certain portions of your unit for the holidays and you do so anyway, the association may send you a violation letter and you could be subject to a fine.

Prior to decorating your unit or bringing in a live Christmas tree, you should review the association’s governing documents, specifically the declaration of condominium and the rules and regulations. Most Declarations state that no owner or occupant shall do or permit anything to be done in his unit or bring or keep anything therein which will in any way increase the risk for fire or the rate of fire insurance on any buildings, or on property therein. In this case, real Christmas trees may be implied to be prohibited since they increase the risk of fire.

With respect to decorating your balcony and/or exterior door, the balcony, the railings and the door may be considered common elements of the unit and the Declaration may state that a unit owner may not modify, decorate or attach anything to the balcony or the exterior door of your unit. For example, one my client’s Declarations states that unit owners shall not decorate or change the appearance of any portion of the exterior of the building including the balcony without the Association’s prior approval. It also states that nothing may be attached to, hung, displayed, affixed or placed upon the balcony, doors, windows or other portions of the building or on the common elements. This would mean that an owner would not be permitted to string or display holiday lights on the balcony or the railing of the balcony. This language would also not allow anyone to hang anything on the exterior of the unit door, including wreaths.

There may be many rules when it comes to decorating your unit. Make sure if you want to decorate for the holidays you contact the association to make sure you don’t need any type of prior approval and also review the association’s governing documents so you are aware of what you are and are not allowed to do when it comes to holiday decorating.

Remember, you can still be festive by being creative and putting up: a fake Christmas tree in your unit, a wreath on the interior of your door and placing wrapped presents under your tree.

With respect to hanging religious objects on the mantel or frame of a unit door, Section 718.113(6) of the Florida Statutes states “an association may not refuse the request of a unit owner for a reasonable accommodation for the attachment on the mantel or frame of the door of the unit owner of a religious object not to exceed 3 inches wide, 6 inches high and 1.5 inches deep.” This means that an owner may hang a mezuzah or a cross (or other religious symbol) on the frame of the door but you should first send a request to the association asking the association to make a reasonable accommodation by allowing him or her to hang the religious object. And the religious object must comply with the size limitations and placement of same as set forth in Section 718.113(6) of the Florida Statute.

]]>http://blogs.sun-sentinel.com/condoblog/2014/11/tis-the-season.html/feed2Developers’ Right to Amend HOA Covenants/Equitable Servitudes is limitedhttp://blogs.sun-sentinel.com/condoblog/2014/11/developers-right-to-amend-hoa-covenantsequitable-servitudes-are-limited.html
http://blogs.sun-sentinel.com/condoblog/2014/11/developers-right-to-amend-hoa-covenantsequitable-servitudes-are-limited.html#commentsFri, 07 Nov 2014 05:07:14 +0000Jean Winters, Esq.http://blogs.sun-sentinel.com/condoblog/?p=6415In years past, it was not uncommon for a developer to create a covenant (or equitable servitude) granting to itself the sole and unilateral right to amend the document, usually a Declaration of Covenants, Conditions and Restrictions. Perhaps the developer attempted to amend the covenants after turnover to the members. Or, the developer attempted to assign that right to a homeowners’ or property owners’ association. This can become sticky in cases where the developer did not create the association or did not include a provision authorizing it to “step into the developers’ shoes” after turnover. While uncommon, this has occurred, especially in older developments. On occasion it still arises, where older covenants were improperly amended. Is it too late now to challenge those? We know that the statute of limitations bars challenge (in most cases) after five years from the recording of an amendment. But it doesn’t always. This is a situation where it may not – even many years after the amendment was recorded. It depends on the facts and circumstances.

Before 1998, it was not uncommon for developers to create a covenant allowing only him (or her) to amend the documents. Florida Statutes Section 720.3075 Florida Statutes (enacted May 28, 1998) addresses that problem. That provision prohibits the the inclusion or enforcement of “a declaration of covenants, articles of incorporation, bylaws, or any other document of the association which binds members of the association, which either have the effect of or provide” that a developer has the unilateral ability to amend or make changes to a homeowners’ association documents.

A few years ago, I litigated a case on just this issue, for a homeowner in an older development. The amendment in question was recorded in 1989 – before the Florida law was enacted. Therefore, I relied on public policy and a few out-of-state cases, one of which was a South Carolina appellate ruling. Last month, the South Carolina Supreme Court upheld that ruling. In my client’s case, a set of covenants gave the developer unilateral and sole authority to amend the covenants. The developer assigned that right to a property owners association seven years after he had relinquished control of the development. The POA was not incorporated by the developer, but by a few lot owners. The POA amended the covenants, relying on that assignment. Opposing counsel argued that the developer could assign his right at the time. However, the court ruled in my clients’s favor. Both the 1986 assignment and the 1989 amendment relying on that assignment were declared void ab initio – from the start. The property owners’ association’s defenses of statute of limitations, laches and estoppel did not work there.

A void instrument is always void. As a Florida appellate court held, a void deed or other instrument (unlike fine wine) does not improve with age. An instrument executed by those lacking authority to do so renders it void from the start. Community associations should be aware of these limitations – whether HOA, condo or co-op. They might come back to bite.

]]>http://blogs.sun-sentinel.com/condoblog/2014/11/developers-right-to-amend-hoa-covenantsequitable-servitudes-are-limited.html/feed1Question: Can a condominium association turn off your water if you don’t pay your assessments?http://blogs.sun-sentinel.com/condoblog/2014/11/question-can-a-condominium-association-turn-off-your-water-if-you-don%e2%80%99t-pay-your-assessments.html
http://blogs.sun-sentinel.com/condoblog/2014/11/question-can-a-condominium-association-turn-off-your-water-if-you-don%e2%80%99t-pay-your-assessments.html#commentsThu, 06 Nov 2014 15:59:33 +0000Lindsay Raphael, Esq.http://blogs.sun-sentinel.com/condoblog/?p=6422Answer: No. Section 718.303(4) of the Florida Statutes allows the Association to suspend the right of a unit owner or the unit’s occupant, licensee, or invitee to use common elements, common facilities or any other association property until the monetary obligation is paid in full.

Florida law does not allow the association to suspend the owner’s right to use limited common elements intended to be used only by that unit, common elements needed to access the unit, utility services provided to the unit, parking spaces or elevators.

Water would be considered a utility the association cannot suspend.

All suspension imposed must be approved at a properly noticed board meeting. Upon approval, the board must notify the unit owner and, if applicable, the unit’s occupant, licensee, or invitee by mail or hand delivery of the suspension.

]]>http://blogs.sun-sentinel.com/condoblog/2014/11/question-can-a-condominium-association-turn-off-your-water-if-you-don%e2%80%99t-pay-your-assessments.html/feed0Videotaping community association meetings-where do the owners’ rights start and the directors’ rights end?http://blogs.sun-sentinel.com/condoblog/2014/11/videotaping-community-association-meetings-where-do-the-owners-rights-start-and-the-directors-rights-end.html
http://blogs.sun-sentinel.com/condoblog/2014/11/videotaping-community-association-meetings-where-do-the-owners-rights-start-and-the-directors-rights-end.html#commentsMon, 03 Nov 2014 11:56:01 +0000Donna DiMaggio Berger, Esq.http://blogs.sun-sentinel.com/condoblog/?p=6413Have you ever sat in a board or membership meeting only to notice at some point that someone in the audience is videotaping the meeting? Did the fact that you were being filmed concern you at all?

The Florida Legislature granted condominium and HOA members the right to videotape board and membership meetings. Florida cooperative owners can only videotape board meetings. However, that right is tempered by the fact that such taping is subject to reasonable board rules and regulations. The reasons for wanting to videotape a meeting can vary from member to member. Some people feel that it is the only possible method to accurately capture what transpires at a meeting; this is particularly true when a board does not provide timely and accurate meeting minutes after the fact. For other people, the ability to videotape may provide a handy tool to harass or annoy someone they don’t like in the community. Many boards do create reasonable rules and restrictions regarding the videotaping of meetings and those rules typically require that someone planning to use such equipment advise the board in advance and tape from a certain distance during the meeting. In addition to thinking about how the person videotaping should conduct himself or herself, it is important to give some thought as to how those tapes will be used after they are made.

If you learn that tapes of your community meetings are being posted on Youtube or other public forums, you may have legitimate privacy and security concerns. Those tapes can reveal directors’ faces and names (given at roll call) as well as such sensitive information as a director advising that he or she won’t be at the next meeting because they will be out of town. At that point, it would not be difficult for someone to look up that person’s property address in the Public Records and use that information for ill intentions.

The Florida shared ownership statutes unfortunately do not currently limit the use or distribution of videotapes by owners but the board can pass a rule limiting such use. However, it would be preferable if this loophole were closed statutorily by clarifying that videotapes made of association meetings cannot be posted in public forums. In the interim, there is certainly an argument to be made that prohibiting the posting of such videotapes in a public forum would constitute a reasonable board rule.

]]>http://blogs.sun-sentinel.com/condoblog/2014/11/videotaping-community-association-meetings-where-do-the-owners-rights-start-and-the-directors-rights-end.html/feed1Can a power of attorney be used to elect a condominium board of directors?http://blogs.sun-sentinel.com/condoblog/2014/10/can-a-power-of-attorney-be-used-to-elect-a-condominium-board-of-directors.html
http://blogs.sun-sentinel.com/condoblog/2014/10/can-a-power-of-attorney-be-used-to-elect-a-condominium-board-of-directors.html#commentsThu, 23 Oct 2014 10:00:11 +0000Lindsay Raphael, Esq.http://blogs.sun-sentinel.com/condoblog/?p=6411A power of attorney is an instrument granting someone authority to act as agent or attorney-in-fact for the grantor.

Section 718.1035 provides the following:

The use of a power of attorney that affects any aspect of the operation of a condominium shall be subject to and in compliance with the provisions of this chapter and all condominium documents, association rules and other rules adopted pursuant to this chapter, and all other covenants, conditions, and restrictions in force at the time of the execution of the power of attorney.

Chapter 709 of the Florida Statutes governs the formalities of a power of attorney. Section 709.2105 of the Florida Statutes provides that in order for a power of attorney to be valid:

(1) The agent must be a natural person who is 18 years of age or older or a financial institution that has trust powers, has a place of business in this state, and is authorized to conduct trust business in this state.

(2) A power of attorney must be signed by the principal and by two subscribing witnesses and be acknowledged by the principal before a notary public or as otherwise provided in Section 695.03 of the Florida Statutes.

(3) If the principal is physically unable to sign the power of attorney, the notary public before whom the principal’s oath or acknowledgment is made may sign the principal’s name on the power of attorney pursuant to Section 117.05(14) of the Florida Statutes.

If an owner of a condominium grants an agent a valid power of attorney, the power of attorney may give the agent the power to:

Attend and participate in condominium board meetings.

Inspect the association’s official records.

Vote in a recall.

But it may not allow the agent to vote in an election or sit on the board.

All of the above powers are contingent on the association’s governing documents. If the governing documents restrict the powers of a power of attorney, then those restrictions are valid.

Section 718.112(2)(d) of the Florida Statutes limits the use of a power of attorney in the election of directors. It specifically states that no unit owner shall permit any other person to vote his or her ballot.

If you are an association that has received a power of attorney or a person who is interested in granting a power of attorney, I recommend that you contact an attorney to make sure the power of attorney is valid and that it may be used for the purpose for which you have granted it.